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International Regulatory Affairs Symposium: "What Makes a Good Regulator", 31 March 2011

Judith Hackitt CBE, HSE Chair

How best to regulate the spectrum from the keen compliant to the criminal - especially larger businesses

Good afternoon everybody and thank you to the organisers for inviting me to join you here today. I view events such as these – especially those with an international dimension – to serve as a great opportunity to share HSE's experiences and the lessons we've learned regulating health and safety in Britain's workplaces for almost the past four decades. It also provides an opportunity for us to hear and learn from the perspectives of others.

You've asked for Jonathan and I to focus on how to regulate across a broad business landscape applying a regime to companies ranging in size and demonstrating varying levels of commitment to meeting their responsibilities under the law. To do this from a health and safety perspective, my remarks today will cover a few broad areas. This will include: reviewing how the health and safety system in Great Britain has evolved. I will also explain the principles that underpin our approach, the tools that we use to achieve our aims and the responsibilities that are placed on organisations – both small and large. And lastly, I will sketch out how we are seeking to reinvigorate the system.

As many of you might know, Great Britain has had a tradition of health and safety regulation going back over 150 years. For much of this period, the legislation that emerged was piecemeal and inconsistent being introduced as different sectors developed with time. As a consequence, when we got to the 1960s, the UK had a plethora of, confusing and sometimes conflicting, workplace regulations which were often very detailed and which each had their own inspectorates that set different standards in the sectors which were regulated but left other sectors of the economy with little or no regulation or standards for health and safety.

A major change came in the 1970s with the publication of the Robens report which resulted in the Health and Safety at Work Act 1974 and the establishment of the Health and Safety Executive.

More than 36 years after its introduction into law the Health and Safety at Work Act has proven itself to be an outstanding and resilient example of good regulation which is applicable across all sectors of the economy. Despite the enormous changes which have taken place in Great Britain's workplaces over that time, such as the shift from heavy industrial manufacturing to a much broader range of working activities and work patterns – like office-based working, the legislation covering workplace health and safety is as relevant today as it was 36 years ago.

What the Robens report recommended and what actually happened in 1974 was the sweeping away of all the prescriptive – rules based – industry specific regulations, to be replaced instead with a new regulatory regime based upon some very sound common sense principles.

The first and most important of those principles is that the person who is best placed to manage risk in any workplace is the person who creates that risk. In the vast majority of cases what this means in practice is that there is a duty placed on every employer to manage the risks associated with their business or undertaking. So whether you are the owner of a shop or the head of a major construction company it is for you to identify the actual risks involved in carrying out your business and put appropriate measures in place to manage those risks of harm being caused to your employees or to members of the public who may be affected by the work you do. The law requires risks to be managed and reduced to as low as is reasonably practicable, but does not require that all risks be eliminated .

The law also says that every employee has a duty to act in a manner that does not put him or herself or fellow employees in danger – another very reasonable expectation that simply means that everyone should behave sensibly and not recklessly whilst in their workplace.

Those principles of risk creators being responsible for managing risk and of reasonable practicability remain the cornerstones of our regulatory framework today. Having covered the historical origins of the framework let me now explain the scale and diversity of HSE's remit in 2011.

HSE is an organisation of some 3,500 people and we regulate heath and safety in practically all workplaces throughout Great Britain. That means:

we cover Construction on every scale from small refurbishment projects through to major projects like Terminal 5 at Heathrow and the Olympics;

we cover Offshore oil and gas exploration and production;

we cover the nuclear industry, so we are already heavily involved in reviewing the safety of the proposed new nuclear power reactors which are likely to be built over the next decade;

we cover agriculture – an industry sector which today employs ~300,000 people and which has the highest workplace fatality rate of any sector; and

we cover hospitals, schools and colleges because these are all workplaces too.

Although the law as I have described it applies to all workplaces, the actual inspection and enforcement of health and safety law in small low risk businesses such as shops and offices is actually carried out by local authority inspectors with whom we work in partnership to ensure consistency of approach and standards.

But whether you look at the list covered by HSE itself or the full spectrum including smaller businesses it becomes immediately apparent that the risks to health and safety in this diverse range of workplaces are completely different. This reinforces the intrinsic value of the regime's main demand that every employer should understand and address the specific risks in their business or undertaking.

Being the regulator of health and safety means that HSE:

offers advice and guidance on how to assess and manage risks;

conducts research into new and emerging risks – such as the currently unknown risks which may be associated with nanotechnologies or with new energy technologies such as carbon capture and storage;

carries out investigations into accidents and incidents to find out the real causes and to ensure that lessons are learned; and

in some cases, where and when it is warranted, we take enforcement action. We can issue notices requiring people to take steps to improve unsafe conditions in the workplace and in the most serious of cases we prosecute those who have failed in their duty to take reasonable action whether that be through negligence or wilful disregard of the law.

We do not prescribe the detail of how health and safety is managed in any workplace. As I've already said, the responsibility to manage the risk lies with the business or organisation and the people who work in it – especially a company's management. But it is for those dutyholders to convince/demonstrate to HSE inspectors that they have a system in place to effectively identify and manage the risks in that business.

Prosecution and enforcement is an important part of what we do and it is an important part of our role to provide an effective deterrent – but our mission is to prevent death, injury and ill health to those at work and those affected by work activities. Given that we have finite resources it is essential that our approach and our interventions are focussed on the basis of addressing the highest risks and in those areas where we can have the most impact.

And I'm proud to say that over the last 35 years Great Britain's approach to health and safety has worked well. Our performance has shown considerable improvement over the last 36 years and remains among the best in the world in terms of fatalities, injuries and ill health. In the 1960s, up to 1,000 people died in workplaces accidents and incidents every year. In 2009/10 the equivalent number was 152 fatalities. But we still need to seek out further improvement even though that gets more difficult. Our firm belief is that this is about winning hearts and minds of all those that can make the difference; new laws or rules are unlikely to achieve that.

In 2009 HSE's Board launched a new strategy that preserved and re-stated the principles of the Health and Safety at Work Act that I've spoken about earlier but also identified and highlighted a number of crucial areas where further improvement was needed.

Principally, the strategy stated clearly that leadership in health and safety is fundamental because it governs the kind of health and safety culture an organisation has. We need the leaders of organisations to set the tone from the top. By doing this, health and safety becomes a fundamental part of how a business is operated so that it is ingrained and embedded at every level throughout the organisation. With strong leadership, people feel competent and confident in what they do and everyone becomes a leader in health and safety in some way.

Without leadership the other strands that make up the strategy simply won't happen.

Worker involvement and engagement has always been an important part of the UK's approach to Health and Safety and despite the changing landscape of workforce organisation today that remains the case. We frequently talk about partnership being at the heart of good health and safety performance and there is a wealth of evidence to show that partnership between management and workforce in organisations of all shapes and sizes makes a significant contribution to good health and safety performance The workforce are the 'eyes and ears', they are most familiar with the job and what it involves they need to be encouraged to speak up if things aren't right – and they very often know how to solve the problem as well.

When we launched the strategy, we challenged companies, organisations and individuals to be: 'Part of the Solution'. This was a deliberate move to remind everyone of their roles and responsibilities in the health and safety system. HSE's role, as the regulator, is to set the strategic direction and lead the system.

This approach also creates a space and opportunity for those companies, organisations or individuals that are committed to doing the right things in driving up health and safety performance to show cross-sector leadership by working together to learn lessons and share best practice.

This in turn enables us as the regulator to focus more of our time and attention on those areas where there are laggards – whether that is individual companies or sectors where there is a history of poorer performance.

proportionality which recognises that risk profiles vary considerably from one business to another and therefore will require a tailored approach to fit the purpose

requiring duty holders to identify the risks and manage them

recognising that this is not a static one off process – risks will change as businesses evolve and so a dynamic approach to risk management is required; and

recognising also that "best practice" will also evolve over time and so, encourages continuous improvement and raising of standards without the need for constant rewriting of prescriptive standards.

I have tried to cover a lot of ground in a short period of time. I am conscious that no regulatory regime will ever be perfect or suit everyone but I do believe that the UK system has demonstrated that it works well across a very broad range of organisations and remained effective as that range of organisations had changed over time. We have a clear and robust framework for the management of risk. It enables those who are responsible to identify and manage the most significant risks in their business. It places the onus on the businesses to demonstrate that it is managing those risks and enables the regulator to focus the majority of its time and attention on those who choose to ignore or flout their responsibilities.